A Civic Death – citizenship-stripping of Foreign Terrorist Fighters

“What are the implications for national and international security of allowing terror suspects to be loose and undocumented in whatever country they happen to be in when their citizenship is revoked?…There are many unanswered questions” Baroness Smith of Basildon, Parliamentary debate in the UK House of Lords, 17 March 2014 ¹

Citizenship-stripping of ISIS and former ISIS fighters stops them from being able to return to their home country.  Often those fighters do not have another citizenship.  Stripping them of their one citizenship makes them stateless.  Their children, too, are at risk of statelessness.

The UK’s Shamima Begum is one high-profile example of citizenship-stripping ², but there are others.  Seventeen Australian fighters who joined ISIS have had their Australian citizenship revoked.  Nationals of Denmark, Germany, Switzerland and the US were also stripped of their citizenship by their respective countries ³.

What is a foreign terrorist fighter?

Foreign Terrorist Fighters (FTF) are defined by the UN Security Council as:

“. . .individuals who travel to a State other than their State of residence or nationality for the purpose of the perpetration, planning or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict” ⁴

At current estimates, around 40,000 radicalised individuals from more than 110 countries have travelled and taken part in conflicts ⁵, with up to a quarter of those either women or children.  Reports suggest that women who have travelled constitute around 13% ⁶.  Many of the men and women who have gone to Syria and Iraq have now died ⁷.  It is hard to get exact figures.  According to the UN, there is a large discrepancy between the total number of foreign fighters and the number recorded as killed, detained, or who are known to have returned to their home country or to another state.

Estimates as of February 2019, place the numbers of those still controlled by ISIS fighters and still alive in Syria or Iraq at approximately 3,000 ⁸.  That’s 3,000 foreign nationals that, at least for now, are citizens of states that may not want them back.

Better estimates are available for those who have already returned.  The BBC reports that by June 2018 nearly 4000 returnees had been received by Middle East and North African Countries, under 2000 returnees had gone back to Western European countries ⁹, around 800 to Eastern Europe and then a few hundred each for Central Asia, South-East, and Southern Asia.  Less than a hundred had returned to the America, and the Antipodes ¹⁰.

Why are returning foreign terrorist fighters a problem?

The main concern, expressed by individual states and by the UN ¹¹, is that FTF returnees may continue to be ‘active’ on release from prison.  The concern is not just for male soldiers, but also radicalised women who have travelled to Syria or Iraq and from traumatised minors, presumably the children of FTFs born in conflict zones.  Even those who travelled, but did not actively participate in armed conflict, may still have knowledge, networks and training useful for the preparation or abetting of terrorist offences ¹².

There is no denying that the threat is real.  The attack in Paris in 2015 which resulted in the death of 130 people and a further 494 wounded was perpetrated by an FTF who had trained in Syria.  Equally, the man responsible for an attack on a Jewish museum in Brussels killing four people was a French citizen who had fought in the Syrian civil war ¹³.

States see their options as two-fold ¹⁴.  They can accept their own nationals back and seek to punish, monitor and try to rehabilitate them to deter further attacks.  Alternatively, states can revoke their citizenship and prevent them from returning.  Stripped of their citizenship, FTFs become someone else’s problem.

International law and citizenship-stripping – what are the obligations of state parties?

According to the Migration Policy Institute, more than 130 states have legislation which allows them to revoke an individual’s citizenship, including 19 EU members.  Many of those states have expanded the number of terrorism-related offences which would make citizenship-stripping easier.  However, that does not mean that they are able to do so in any circumstance.  International law limits the exercise of that right for states who are parties to the 1961 Convention on the Reduction of Statelessness.

Under Article 8(1), of the 1961 Convention, state parties must not deprive an individual of their nationality if that individual will be rendered stateless as a result.  For more detail on the two Statelessness Conventions and how they seek to prevent and mitigate the effects of statelessness see my previous blogs here and here.

As the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms has pointed out, citizenship-stripping is a breach of international law ¹⁵.  It also breaches the state’s obligations to its own citizens, no matter how undesirable they are and abhorrent their behaviour has been.  To date the majority of those who have had their citizenship revoked have been dual nationals ¹⁶.  Where the FTF has dual nationality, the state does not fall foul of its obligations under international law and under the 1961 Convention.

A technicality – how possible is the possibility of a backup citizenship?

States are very well aware of their obligations under international law when it comes to citizenship-stripping.  That is why, where attempts have been made to strip single-citizenship FTFs, states have argued that the individuals will not be rendered stateless.  The argument is made on the basis that citizenship of another state is possible and available to that individual.  Even if that individual has never sought citizenship of that other state.  And even if it is unlikely, given their heinous actions, that the other state will want to grant them citizenship. But how possible is this possibility?

In the case of Neil Prakash who was stripped of his Australian citizenship because he was assumed to have Fiji citizenship, this possibility seems quite remote. Fiji did not allow dual citizenship prior to 2009.  Prakash was born in Australian and had not made an application for citizenship in Fiji.  Nor had he fulfilled the other key requirement: to live in Fiji for three of the five years before his application ¹⁷.

For Shamima Begum, the possibility of having another nationality, in this case that of Bangladesh, also seems out of reach.  Bangladeshi law ¹⁸ confers citizenship by descent if that person has at least one parent who was a citizen of that country at the time of the person’s birth and so long as that person is still under 21.  Shamima Begum was under 21 at the time the UK issued its Citizenship Depravation Order and her mother is believed to be a Bangladeshi citizen ¹⁹.  But what does ‘confer’ mean?  Does it mean that a person is a citizen without further ado?  Or does it mean that citizenship must have been applied for?  Certainly, and in contrast to the decision in her first appeal against the Deprivation Order ²⁰, Bangladeshi officials have claimed that Begum had not applied for Bangladeshi citizenship ²¹.  This means she is not a Bangladeshi citizen and would, in fact, be rendered stateless by the Deprivation Order.

The risk of statelessness for children of FTFs

States have found citizenship-stripping acceptable because FTFs have, or might have, another citizenship.  But the same cannot always be said about their children.

An example are the two children born in Syria to a woman with Australian and Lebanese citizenship.  She was stripped of her Australian citizenship.  The children’s father, an ISIS fighter, has also been stripped of Australian citizenship.  He, like the mother, also has Lebanese citizenship, but without a birth certificate or any other identity documents, the children cannot prove the familial link necessary under Lebanese law ²².  Lebanon is one of the 25 states in the world with discriminatory nationality laws that do not allow nationality to be transferred to children by their mothers.  I have written about the discriminatory nationality law of Lebanon here.  The result of stripping Australian citizenship from the parents of these children is that the children are left at risk of growing up stateless in a refugee camp in northern Syria.

Even where the parents retain their citizenship, children born in Syria and Iraq to FTFs face a much-heightened risk of statelessness.  Children are likely to live in conditions that are not conducive to having their birth registered and being issued with the necessary identity documents.  The children at risk are in their thousands and are spread across several camps in Syria and Iraq.  More than 3000 children of an FTF parent are currently living in Al-Hol in Northern Syria camp without ID documents.  The children are between the ages of one month and six years old and many have known no other life ²³.

What is more, states like Denmark, are specifically enacting legislation which seeks to ensure that any child born to a Danish parent who has unlawfully entered or stays in a ‘conflict zone’ cannot acquire Danish citizenship at birth.  This rule will not apply to a child that would otherwise be stateless, but the risk is certainly heightened, given the child’s already precarious situation.   For more information on this development, see the excellent blog from the European Network on Statelessness.

Statelessness vs. safety

States are in a difficult position.  They do not want their citizens fighting in armed conflicts or with and on behalf terrorist groups.  Nor do they want those citizens to return, radicalised, back to their home countries on leaving the conflict zone.  To have them back endangers their citizens, whilst keeping FTFs in prison and taking them through rehabilitation programmes costs money.

One solution to punish the individual for their heinous, unacceptable and divisive actions and avoid the problem of return is citizenship-stripping.  The individual is then no longer part of the society which they left, and they cannot come back to that country and cause further damage.

Citizenship-stripping as a solution is becoming more and more tempting and the number of individuals being stripped of their citizenship is increasing, despite longstanding constraints on states about whom they can target with this measure.  The constraints imposed by international law on states reflect the huge worldwide problem that is statelessness.  Adding FTFs, and their children, to the 10 million stateless people, ignores what is often a home-grown problem by leaving it on someone else’s doorstep.  The regions in which FTFs fight are ill equipped to de-radicalise, rehabilitate and, yes, even punish properly, compared to the developing countries which are most frequently relying on citizenship-stripping for both punishment and for national security reasons.